Waste Trade in Southeast Asia LEGAL JUSTIFICATIONS FOR REGIONAL ACTION 2021 REPORT Waste Trade in Southeast Asia: Legal Justifications for Regional Action JULY 2021 © EcoWaste Coalition Lead Author: Atty. Gregorio Rafael P. Bueta Lead Contributor: Justine Nicole V. Torres (Philippines and Thailand) Contributors: Dr. Hanim Kamaruddin (Malaysia) Atty. Conrado M. Cornelius (Indonesia) Researchers: Mikaela Pamatmat Reynaleigh Delos Reyes Veronica Pine Expert Support: Matthew H. Baird (Asian Research Institute for Environmental Law) Graphic Layout: Chester Tan (Parabukas, Inc.) Reviewers: Manny Calonzo; Chinkie Pelino-Golle; Lea Guerrero; Marian Ledesma; Yuyun Ismawati; Mageswari Sangaralingam; Thony Dizon; Lee Bell DISCLAIMER This document has been produced with the financial contribution by the Swedish International Development Co-operation Agency (SIDA) through the Swedish Society for Nature Conservation, (SSNC). The views herein shall not necessarily be taken to reflect the official opinion of SSNC or its donor. © Manny Calonzo/EcoWaste Coalition WASTE TRADE IN SOUTHEAST ASIA CONTENTS i. List of Acronyms ii. Executive Summary I. Introduction 1 Background 2 Objectives and Methodology II. Global Trends and Developments 4 Global Waste Situationer 4 Major Waste Management Challenges Waste Trade Marine Plastic Pollution COVID-19 Pandemic Impacts 6 International Policy Framework Basel Convention and Basel Ban Amendment Waste Issues in other Multilateral Environmental Agreements Global Agreement on Marine Plastics III. ASEAN Policy Landscape 10 ASEAN Declarations, Positions and Action Plans 11 National-level Efforts IV. Waste Trade in ASEAN 13 ASEAN Experiences with Waste Trade 13 ASEAN and Global Waste Trade - Why It Matters 14 Waste Trade in Selected ASEAN Member States Indonesia Malaysia The Philippines Thailand 17 Analysis of Country Case Studies V. Conclusion and Recommendations 20 Legal Justifications for Regional Action 23 Recommendations for an ASEAN Roadmap on Waste Trade iii. References i WASTE TRADE IN SOUTHEAST ASIA LIST OF ACRONYMS ADB Asian Development Bank AHEG Ad Hoc Experts Group AMS ASEAN Member States API-P Angka Pengenal Importir-Produsen (Production-Importer License, Indonesia) ASEAN Association of Southeast Asian Nations ASSC ASEAN Socio-Cultural Community AWGCW ASEAN Working Group on Chemicals and Waste CBD United Nations Convention on Biological Diversity COP Conference of Parties CTT-CFF Coral Triangle Initiative on Coral Reefs, Fisheries, and Food Security DENR Department of Environment and Natural Resources, Philippines EG Experts Group GHG Greenhouse Gas GHS Globally Harmonized System of Classification and Labeling of Chemicals GPSEA Greenpeace Southeast Asia IPBES Inter-governmental Science-Policy Platform on Biodiversity and Ecosystem Services IPEN International Pollutants Elimination Network IUCN International Union for the Conservation of Nature JPSPN Department of National Solid Waste Management, Malaysia KASA Ministry of Environment and Water, Malaysia KPKT Ministry of Housing and Local Government, Malaysia MEAs Multilateral Environmental Agreements NDCs Nationally Determined Contributions OECD Organisation for Economic Co-operation and Development POPs Persistent Organic Pollutants RA Republic Act, Philippines SUPs Single-use Plastics TWG Technical Working Group UNEA United Nations Environment Assembly UN ESCAP United Nations Economic and Social Commission for Asia and the Pacific UNEP United Nations Environment Programme USD US Dollars ii WASTE TRADE IN SOUTHEAST ASIA EXECUTIVE SUMMARY The COVID-19 pandemic has already had negative effects on The waste trade is a common concern for many ASEAN countries. waste management, significantly contributing to increases in While national level efforts on waste management include medical waste and household waste, and a substantial slowdown prohibitions against the illegal entry of imported waste, the in recycling efforts. This upsurge in hazardous waste particularly country case studies also reveal how broader waste management endangers developing countries that are destinations for waste challenges exist alongside waste trade, and how weak exports via the global waste trade. implementation of waste trade-related laws opens doors to illegal waste shipment. Despite these shared challenges however, there is Southeast Asian countries continue to be at risk to the influx of still a lack of a common and regional response to the waste trade legal and illegal waste from the developed and industrialized world. issue in ASEAN. Current legal and policy responses are not enough to stop the entry of illegal waste, and more importantly, are insufficient to protect An ASEAN Response to the Waste Trade Crisis the health of both people and the environment. ASEAN countries would help countries strengthen their efforts to evidently need a unified and stronger response to waste trade. protect the region’s rich ecosystems and biodiversity for communities and future generations. This report provides a survey of regional efforts to recognize and address the issues of pollution and waste management, including Countries in ASEAN have also shown that they are willing to take progress on the ratification and acceptance of the Basel Ban a stand against waste trade and not make the region the dumping Amendment in ASEAN Member States. National laws and policies ground of the world. Moreover, there is ample legal justification on the waste trade are examined, with a particular focus on the at the regional and national levels which can serve as a basis Philippines, Indonesia, Thailand and Malaysia. Regional documents, to push for regional action. These can be found in the ASEAN declarations and mechanisms from the ASEAN are also analyzed. Charter and declarations, country constitutions and national laws Based on these, the report argues that the broad ASEAN and and policies, general principles of environmental law and other bilateral initiatives, and trends in national action provide ample legal multilateral environmental agreements. justifications for stronger regional action against the global waste trade. This report proposes a Roadmap for ASEAN regional action on waste trade, with four main action points: The report highlights the following points: 1. Revisiting ASEAN Statements, Issuing A Clear Waste Trade is an ASEAN Issue. Stand on Waste Trade From its charter to more recent blueprints into the next decade, Tackling the waste trade in the ASEAN region is important for protecting the environment and natural resources play an important several reasons: role in achieving prosperity in the region. A clear and concrete ASEAN stand on waste trade can be embodied in a declaration First, many ASEAN member states are already facing a waste which shall call on ASEAN member states to immediately ratify crisis managing large volumes of domestic waste. Second, ASEAN the Basel Ban Amendment; urging all members to take steps to countries already face other environmental issues, as some of the ban all waste shipments into their countries; establish regional most biodiverse and natural resource-rich regions in the world. mechanisms on waste trade; and improving enforcement and Third, the risks brought about by climate change, and the need to compliance capacity, including a focus upstream policies that look meet climate adaptation and mitigation goals, are also related to at reduction of production of sources of pollution such as plastics. the issue of waste trade. 2. Establishing a regional mechanism on waste trade Country case studies illustrate how the waste trade exacerbates A regional mechanism that will put into effect the provisions of the existing waste management challenges. said declaration. The implementing entity, whether new or already ii WASTE TRADE IN SOUTHEAST ASIA existing, must have some permanence and not be merely an ad-hoc 4. Draft and Approve a Regional Agreement on and temporary measure. The mechanism can establish a platform Waste Trade for information sharing and exchange, and identify gaps, loopholes, To secure and solidify the recommendations given above and the and inconsistencies in ASEAN documents, statements, and ASEAN position on waste trade, member states can enter into a declarations, as well as individual country statements or positions, regional agreement on waste trade. This will then make its position which run counter to the stated goals of curbing and banning waste legally binding on the member countries, and can also be made a trade into the region. source of legal rights and remedies for the people of the region. This is not without precedent, as other regional blocs have entered 3. Create an Experts Group/Technical Working Group into their own legally binding arrangements to complement, or to The regional response will need to tap into regional expertise on strengthen the provisions of international treaties and conventions. waste management and waste trade. The creation of an experts group/technical working group (EG/TWG) will help ensure that any position, statement, or action taken by ASEAN countries is based on data, careful analysis, and expert study and opinions. The EG/TWG should have equal representation from all ASEAN countries. The group should endeavor, as best as possible, to be independent of ASEAN governments and leaders. Its work should be open and transparent, and its outputs and work, including any data sources, should be easily accessible and understandable by all ASEAN citizens. The Philippines is one of the top destinations of waste